- (1.) THESE two second appeals arise out of a single judgment and decree.
(2.) SALLAR had two sons, Ram Harakh and Raghubar Dayal Ram Harakh died leaving the plaintiff as his widow. Sallar was possessed of some immoveable property and it was alleged on behalf of the plaintiff that this property had been settled by a family settlement or partition in three equal shares in favour of Gangajali wife of Sallar, and the two sons of Sallar, Ram Harakh and raghubar Dayal. Each of these three persons became owner of a third of the property of Sallar. On the death of Ram Harakh, his widow, the plaintiff, it was so alleged, agreed to marry raghubar Dayal on the condition that he executed a gift deed of his property in her favour. The gift deed was executed on 20th February 1946 by Raghubar Dayal in favour of Ramrati in respect of his entire interest in the property. This deed was, however, not registered till 28th march 1946. In the meantime, on 26th February 1946, Raghubar Dayal executed a sale deed not only in respect of the one-third share in the property of the entire property of Sallar in favour of the Sallar which belonged to him, but in respect of Union Bank, Utraula. After this sale deed had been executed the plaintiff Ramrati brought a suit for cancellation of the sale deed executed by Raghubar Dayal in favour of the Union Bank of Utraula against her. This suit was resisted by the Union Bank on various grounds. The contesting defendant denied that the plaintiff was the owner of the property in respect of which she had sued, or that the gift deed relied upon by the plaintiff had been executed on the 20th February 1946, and it was alleged that the gift had been acquired subsequently to defraud the defendant. The lower Court originally framed four issues in this case which are reproduced below: 1. Did defendant No. 2 execute any deed of gift in favour of the plaintiff as alleged? 2. Was there any family settlement according to which the plaintiff and defendant No. 3 are entitled to any and what share? 3. Is the sale deed in favour of defendant No. 1 by defendant No. 2 valid? Is the deed invalid for want of consideration? 4. To what relief, if any, is the plaintiff entitled? During the course of the evidence, however, the plaintiff's Counsel admitted the execution of the sale deed obtained by the defendant as also that it was for consideration and after this statement had been made issue No. 3 was struck off by the trial Court and the remaining three issues were tried. The trial Court came to the conclusion that the gift deed dated 20th February 1946, had been executed on that date and although it was registered on 28th March 1946, after the sale deed had been obtained by the defendant the gift deed took priority over the sale deed obtained by the defendant, and that the plaintiff became owner of a one-third share of the property under the gift deed.
(3.) THE finding of the trial Court on issue No. 2 was that there had been a partition between Ram harakh and Raghubar Dayal and that one-third share in the property of Sallar was given' to each of them and the remaining one-third to their mother Smt. Ganajali defendant No. 3. He also found that as it had not been pleaded on behalf of the defendant that the plaintiff forfeited her right in her husband's property on re-marriage, she continued to hold the property inherited by her from her husband even after the re-marriage. No finding, however, was given by the trial court with regard to the remaining one-third share of the property which had passed to Smt. Gangajali, mother of Ram Harakh and Raghubar Dayal, under the partition, but a decree was passed in favour of the plaintiff for the cancellation of sale deed dated 26th February 1946. The defendant went in appeal and it was contended that so far as the share of Gangajali was concerned, the plaintiff could not maintain a suit for the cancellation of the sale deed relating to that part of the property. It was also urged before the lower appellate Court that the plaintiff had lost her rights in the property of her husband on her re-marriage. The lower appellate Court agreed with the view taken by the trial Court in respect of one-third of the property which had been conveyed to the plaintiff under the gift deed but accepted the defendant's contention in respect of the remaining two-thirds of the property. It, therefore, allowed the appeal partly and setting aside the judgment and decree of the trial Court declared that the sale deed executed by raghubar Dayal, in favour of the Union Bank, Utraula, was invalid and inoperative to the extent of one-third share in the property covered by the saledeed and held the sale deed to be good against the plaintiff in respect of the remaining two-thirds or the property. Dissatisfied by the judgment and decree of the lower appellate Court both the plaintiff and the Union Bank, Utraula, have come up in second appeal.;